In re Custody of M.W. (Majority, Concurrence and Dissent)
Annotate this CaseThe question presented for the Washington Supreme Court's review in this case was whether a third party, a step-grandfather with no legally established relationship to his step-grandson, could petition for visitation rights through a custody proceeding pursuant to chapter 26.10 RCW or under some equitable doctrine. At that time, M.W. was in the physical custody of petitioners Greg and Linda Minium, M.W. 's maternal grandparents. Approximately one month after the accident, the Miniums filed a petition for nonparental custody of M.W. pursuant to RCW 26.10.030(1). The petition named Patti Shmilenko, M.W.'s paternal grandmother, as the sole respondent. In March 2010, the Miniums and Mrs. Shmilenko agreed to the entry of a nonparental custody decree establishing the Miniums as M.W. 's legal custodians and granting visitation rights to Mrs. Shmilenko according to an agreed residential schedule. The record is silent as to why respondent John Shmilenko was not included in the court's orders despite residing in the same household as his wife, but all of the orders explicitly provide for visitation with "Patti Shmilenko." Mr. Shmilenko maintained a relationship with M.W. through his wife's visitation rights. When M.W. reached school age three years later, the parties could not agree on a modified residential schedule. Mrs. Shmilenko subsequently petitioned the superior court to modify the original custody decree and residential schedule, naming both herself and her husband as "requesting parties." In response, the Miniums asked the court to terminate Mrs. Shmilenko's visitation rights, contending that her court-ordered, third-party visitation was unconstitutional and that she also was not entitled to visitation under the equitable doctrine of de facto parentage. The court entered a temporary order amending M.W.'s residential schedule and allowing Mrs. Shmilenko to continue to exercise her own visitation rights pursuant to the parties' prior agreed order, and crossed out a reference to Mr. Shmilenko as a "requesting party." Ultimately, the court entered a final order ensuring that Mrs. Shmilenko would continue to have midweek visits with M.W. during the school year, as well as other visitation during certain weekends, holidays, and vacations. Mrs. Shmilenko petitioned to modify the original custody decree, and concurrently filed a motion to join her husband as an additional party to the underlying nonparental custody proceeding. The court denied that motion but indicated that Mr. Shmilenko would be permitted to state the factual basis for bringing his own third-party custody or de facto parentage action and, if he did bring such an action, it would be consolidated with Mrs. Shmilenko's petition to modify the custody decree. "There is no statutory right to third-party visitation under our laws, and we decline to exercise our equitable powers to create such a right." Consequently, the Court reversed and remanded for dismissal of Mr. Shmilenko's petition and the determination of attorney fees.
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